As the use of drugs to execute convicted prisoners increasingly is challenged on legal and ethical grounds, Tennessee has a back-up plan. It will use the electric chair instead.
Gov. Bill Haslam (R) signed a bill Thursday that gives the state the option to electrocute death-row inmates if it is unable to obtain drugs for lethal injections or if lethal injection is declared unconstitutional.
The law comes as states that practice capital punishment struggle to secure execution drugs. European suppliers have stopped selling them for purposes of execution in protest of the death penalty.
Some states have since resorted to getting the drugs from state-regulated pharmacies that they refuse to name, to protect the businesses from protests. But the questions of whether states have a right to do so – or if inmates have a right to vet the source and quality of the drugs – are the subject of an unresolved legal debate playing out in courtrooms across the US.
A spokesperson for the state's Department of Corrections said that it does not keep lethal injection drug supplies "on hand," but "we are confident we will be able to secure the necessary chemicals when needed."
Tennessee had already allowed some condemned inmates to select electrocution instead of lethal injection. But the new law allows the state to choose electrocution for inmates who are condemned to death after July 1, 2014, if the state is unable to obtain one or more of the ingredients in a cocktail of lethal injection drugs. The legislation also allows the state to use electrocution if lethal injection is ever ruled unconstitutional.
“They’re ensuring that they have a method of execution,” says Deborah Denno, a professor at Fordham University School of Law and an expert on the history of capital punishment in the US. “They’re playing it safe, so to speak.”
That Tennessee has chosen an execution method from the past is an unusual move, she says. States typically have tried one method of execution, then abandoned it for a new procedure thought to be an improvement. But states have never before gone backward, she says.
“States have followed this progression, going from one method of execution to another," Professor Denno says. “A state wanting to go back to what we had before is unprecedented. We’re regressing.”
The electric chair, first used in a New York execution in 1890, was introduced as a replacement for hanging – a “barbarous” holdover from “the dark ages,” as the then-New York governor put it, according to Denno. But its results proved grisly. Some states, beginning in 1921, ditched it for the gas chamber, though that also produced grotesque displays of suffering.
By 2009, all of the death penalty states had settled on lethal injection as their default method. The US Supreme Court has never ruled any method of execution to be unconstitutional. Two states, Nebraska and Georgia, have declared electrocution to be unconstitutional. Only six of the 32 states that have capital punishment offer electrocution as a possible execution method, according to Denno’s forthcoming article in Georgetown Law Review.
Those six states default to lethal injection but allow some prisoners to request the electric chair over the lethal injection gurney.
In Tennessee, before the new law, only condemned inmates convicted before Dec. 21, 1998 – when the state switched from electrocution to lethal injection as the default method – could ask for electrocution.
The most recent execution by electrocution was in Tennessee in 2007, and 158 of the executions in the US since 1976 have been by electrocution, versus 1,204 by lethal injection, according to the Death Penalty Information Center.
If Tennessee does decide to use electrocution in an execution, it will likely yield legal war, says Denno.
“Electrocution is really pretty horrible,” she says. “I expect there will a lot of litigation.”
Meanwhile, lethal injection is under intense scrutiny as defense lawyers and advocates probe whether it might violate a constitutional ban on cruel and unusual punishment.
No executions have been carried out in the US since Oklahoma inmate Clayton Lockett died of a heart attack after a bungled execution on April 29. Oklahoma has put all executions on hold for six months while the state conducts an investigation into its execution practices.
Earlier this week, a federal appeals court issued a stay of execution for a Missouri inmate and rebuked the state for its hastiness in pressing forward with the execution as scheduled. The defense said it needed more time to understand if death by lethal injection could violate the man’s Eighth Amendment right, since he is diagnosed with a rare medical condition that his lawyers say could hamper the process.
The next execution scheduled in the US is in Missouri in June, according to the Death Penalty Information Center. The next scheduled execution in Tennessee is on Oct. 7, 2014. The inmate, Billy Irick, was convicted of raping and murdering a young child.